November 15, 2016 Youth convicted of murder ordinarily serve decades in prison before they complete a sentence or are paroled. At the time of release, many of them have spent at least half of their entire life and all of their adulthood incarcerated with adults in prisons. What are the outcomes for these youth when released in adulthood? Do they commit crimes in their communities or perhaps kill again? What lessons for law, correctional practice and public policy can be drawn from their outcomes? This event continued the discussion that the Project on Law and Applied Neuroscience began with the April 2016 event “Boys to Men to Boys.” The presenters made the first presentation of their original research findings on outcomes of youth convicted of murder and examined other behavioral science and neurodevelopmental research to frame a conversation about whether or how current law, policy, and practice might be informed by the lives these men lead upon release. Panelists: - Frank DiCataldo, PhD, Associate Professor of Psychology, Roger Williams University - Karter K. Reed, Community Activist, Advocate, Mentor, and Volunteer - Robert Kinscherff, PhD, JD, Senior Fellow in Law and Applied Neuroscience, Center for Law, Brain & Behavior at Massachusetts General Hospital and Petrie-Flom Center; Associate Vice President for Community Engagement and Teaching Faculty in the Doctoral Clinical Psychology Program and for the Doctoral School Psychology Program, William James College; Faculty at the Center for Law, Brain and Behavior; and Senior Associate for the National Center for Mental Health and Juvenile Justice This event was free and open to the public. Part of the Project on Law and Applied Neuroscience, a collaboration between the Center for Law, Brain & Behavior at Massachusetts General Hospital and the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. For more information, visit our website: http://petrieflom.law.harvard.edu/events/details/legal-policy-implications-of-releasing-youth-incarcerated-for-murder.

1. Half a Life:
Legal and Policy Implications of Releasing
Youth Incarcerated for Murder
Frank DiCataldo, Ph.D.
Roger Williams University
Karter K. Reed, A.A.
Community Activist, Advocate, Mentor
Robert Kinscherff, Ph.D., J.D
Senior Fellow in Law and Applied Neuroscience
MGH and Harvard Law School
© All rights reserved 2016
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2. Half a Life: Legal and Policy Implications of Releasing
Youth Incarcerated for Murder
Overview of Panel
Dr. Frank DiCataldo Summary: Research & Original Research
Mr. Karter K. Reed Perspectives from Lived Experience
Dr. Robert Kinscherff Legal and Policy Implications
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3. Juvenile Life without Parole (JLWOP)
• ACLU estimates that there are currently 2570 individuals serving
JWOP in the US (ACLU.org)
• 57 individuals were serving JLWOP in Massachusetts in 2009 (Children’s
Law Center of Massachusetts, 2009)
• Juvenile lifers experience (Nellis, 2012):
– high levels of exposure to violence at home (79%);
– high rates of physical abuse (46.9%) and sexual abuse (20.5%)
– Significant educational challenges - 40% in special education and nearly
half not attending school at the time of their offense
– Significant social and economic disadvantage – 31.5% living in public
housing and 17.9% not living with a close relative
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4. JWOP in Massachusetts (Children’s Law Center , 2009)
• 41% of those who are serving JLWOP received the sentence for
their first offense
• 20% are serving JLWOP for “Felony-Murder”
• 40% had one or more adult co-defendants
• 35% had a home environment where drugs were almost always
present, being used, bought or sold
• More than half reported significant histories of physical abuse
• Only 31% were enrolled in school at the time of their arrest
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5. Recidivism of Juvenile Homicide Offenders
Study N Follow-up Recidivism Recidivism rate
(years) measure any violent
____________________________________________________________________________________
Howell (1995) 128 1-3 conviction 22%-41%
Hagan (1997) 20 5-15 re-arrest 60% 35%
Heide et al. (2001)59 15 reincarceration 60%
Vries and Liem (2011) 137 8.5 re-arrest 59% 20%
Trulson et al. (2012) 442 3 re-arrest; felony 57%
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6. The Recidivism of Juveniles convicted of homicide and released as adults:
A Massachusetts Study
Sample
• 33 juveniles awaiting trial for a homicide offense or transfer to the DOC post-
conviction for a homicide offense were recruited and interviewed between 1995
and 1998 (DiCataldo and Everett, 2008)
• 22 of the original 33 had been released to the community
• Recidivism data obtained from their Criminal Offender Record Information (CORI)
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7. The Recidivism of Juveniles convicted of homicide and released as adults:
A Massachusetts Study
• Serious Violent Persistent Offenders – two or more post-release convictions
for violent offenses and/or one violent conviction involving the use of a
weapon.
• Single Violent Persistent Offenders - one post-release conviction for a violent
offense without the use of a weapon.
• Violent Desistance Offenders – one or more post-release convictions for non-
violent offense(s) and no violent offense convictions.
• Total Desistance Offenders – No post-release criminal convictions.
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8. The Recidivism of Juveniles convicted of homicide and released as adults:
A Massachusetts Study
Table 1
Demographic and Legal Characteristics of the Four Juvenile Homicide Offender Groups
Serious Single Violence Total
Violent Violent Desistance Desistance
Persistent Persistent Offenders Offenders
Offenders Offenders
N (%) N (%) N (%) N (%)
______________________________________________________________________________
Group 2 (9.1%) 2 (9.1%) 3 (13.6%) 15 (68.2%)
Race
African-American 0 0 3 (13.6%) 9 (40.9%)
Caucasian 1 (4.5%) 0 0 3 (13.6%)
Latino 1 (4.5%) 2 (9.1%) 0 1 (4.5%)
Mixed 0 0 0 2 (9.1%)
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9. The Recidivism of Juveniles convicted of homicide and released as adults:
A Massachusetts Study
Table 2
Prior Offense History and Recidivism Post-Release
------------------------------------------------------------------------------------------------ ---------------------
Serious Single Violent Total Sample
Violent Violent Desistance Desistance Total
Persistent Persistent Offenders Offenders
Offenders Offenders
______________________________________________________________________________
M (SD) M (SD) M (SD) M (SD) M (SD)
Age at Time of 15.9 (.07) 16.3 (1.6) 15.6 (0.8) 16.4 (1.0) 16.2 (0.9)
Offense
Age at Release 28.8 (3.1) 27.7 (2.4) 27.6 (3.6) 29.7 (2.97) 29.1 (2.9)
Time Committed 12.8 (3.1) 11.4 (3.9) 12.0 (2.8) 12.9 (3.1) 12.7 (3.1)
Time at Risk 8.5 (4.7) 7.1 (2.82) 8.5 (2.70) 7.6 (3.73) 7.8 (3.4)
------------------------------------------------------------------------------------------------ ---------------------
N (M, SD) N (M, SD) N (M, SD) N (M, SD) N (M, SD)
Prior Offenses 6 (3.0, 2.1) 5 (2.5, 0.7) 12 (4.0, 1.2) 45 (3.0, 2.7) 68 (3.1, 2.3)
Convictions 14 (7.0, 5.7) 5 (2.5, 0.7) 20 (6.7, 6.7) 0 39 (5.6, 3.9)
Post-Release
Violent Convictions 9 (4.5, 3.5) 2 (1.0, 0.0) 0 0 11 (0.5, 1.3)
Post-Release
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10. The Recidivism of Juveniles convicted of homicide and released as adults:
A Massachusetts Study
Major Findings
Recidivism rate utilizing post-release conviction was generally lower than in previous
studies
Lower rate may be due to their older age (29.1 years) at the time of their release. They
had served an average of 12.7 years in prison and had been in the community for 7.8
years
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11. The Recidivism of Juveniles convicted of homicide and released as adults:
A Massachusetts Study
Total Desistance offenders had the least criminally-involved families and reported a
lower crime problem in their community but reported feeling less safe than the
members of the other groups. Also, had fewer prior mental health and substance
abuse problems and fewer problems with anger control and fighting
Violence Desistance Offenders occupied a middle ground position on prior delinquency,
family history, mental health and community variables
Serious Violent Persistent Group reported a increased history of family criminality,
more mental health and substance abuse problems and more problems with anger
control and fighting
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12. Limitations and Implications
Limitations
Small sample
Selection bias
Post-release interview
• Implications for post-Miller
resentencing and parole hearings
• Potential for youthful offenders for
change and rehabilitation, even if
they have committed a homicide
offense
• The protective role of normal
developmental maturation
(desistance)
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13. Legal and Policy Implications of Releasing
Youth Incarcerated for Murder
Robert Kinscherff, Ph.D., J.D.
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14. Context Shaping Evolving Law and Policy
• “Crack and Handgun” Spike ~ 1985 – 1992
• Public Perception of the Rise of the Teen “Super-Predator”
• “Old Enough To Do the Crime, Old Enough to Do the Time”
• Parallel Emergence of Breakthroughs in Neuroscience
• Scientific Humility in Ability to Predict Individual Outcomes
• Funding of Research on Adolescent Brains, Delinquent Trajectories
• Critique of “Era of Mass Incarceration” and “Pipelines to Prison”
• From Hard or Soft on Crime to “Smart on Crime”
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15. Legal Implications
• 2005 Roper v. Simmons No Death Penalty
• 2010 Graham v. Florida No LWOP For Non-Capital cases
• 2012 Miller v. Alabama No Mandatory JLWOP
• 2016 Montgomery v. Louisiana Miller applied retrospectively
Bringing together two constitutional doctrines: (1) Children are different,
and (2) Death—including sentencing to die in prison (LWOP) is different, at
least for youth under age 18.
The reason: Developmental immaturity mitigates culpability and brings
vulnerabilities to all youth under age 18 that must be taken into account
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16. Convergences of Science and Law
• Developmental neuroscience on adolescent brain changes
• Behavioral and social science on adolescent:
– Capacities for self-regulation
– Capacities for decision-making, especially in “hot” cognition contexts
– Risk-taking and sensation-seeking
– Vulnerabilities to peer influences, family and other social contexts
• Normative self-desistance of misconduct as youth mature
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17. Miller Factors
• Youthful propensity for flawed decisions, reckless actions
• Vulnerability to adverse conditions and/or degree of autonomy
• Circumstances of the offense and the youth’s involvement
• Greater potential for rehabilitation based in maturation
• Developmentally related vulnerabilities in legal proceedings
See: T. Grisso, A Kavanaugh (2016) Prospects for Developmental
Evidence in Juvenile Sentencing Based on Miller v. Alabama.
Psychology, Public Policy and the Law (vol 226, no 3, 235-249)
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18. Miller and Montgomery
• A sentencing court is required to “take into account how
children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison”
(Miller)
• LWOP for youth is reserved for the “rare juvenile offender
whose crime reflects irreparable corruption” and is
“irretrievably depraved” (Miller)
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19. Miller and Montgomery
• Miller’s application of constitutional doctrines regarding the
differences of children from adults based upon mitigation
arising from youthful immaturity and capacities for
rehabilitation as articulated in Miller “established that the
penological justifications for life without parole collapse in
light of the distinctive attributes of youth” (Montgomery)
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20. Legal Implications
• In post-Miller sentencing where LWOP could be imposed:
– What evidence could ever show “irreparable corruption?”
– Note that “heinousness” of the crime cannot itself be used to make
inferences about character or rehabilitation prospects of the youth
(Roper)
• In post-Miller sentencing where LWOP is not imposed:
– What should be the minimum time served before “wrapping” a term
of years or becoming parole-eligible?
– How to balance interests in rehabilitation and punishment?
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21. Legal Implications
• In post-Miller resentencing where LWOP had been imposed:
– Should post-sentencing prison conduct be excluded or included in making the new
sentencing decision?
– Should prison “conditions of confinement” and rehabilitative resources be weighed
in assessing the course of maturation of an inmate incarcerated since adolescence?
• In post-Miller parole hearings:
– Should there be special instructions for Miller inmates regarding how to weigh the
severity of the offense? Assessing conduct by inmates prior to Miller when there
was limited motivation to engage in rehabilitative programming? Weighing impact
of correctional policies that limit access by LWOP inmates to rehabilitative
programming?
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22. Policy Implications
• Different procedures, rules of evidence and/or sentencing for
youth charged with capital offenses? Up to what age?
• Different sentencing guidelines for youth charged with capital
offenses? Up to what age?
• Different facilities with different programming for youth
sentenced for capital or other serious violent offenses? Up to
what age?
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23. Policy Implications
• Emphasis on correctional programming that anticipates
eventual re-entry with focus upon:
– Assuring basic literacy skills with access to higher education
– Providing pre-vocational and vocational skill acquisition
– Facilitating establishing or maintaining positive social networks
– Addresses criminogenic needs, values, attitudes and beliefs
– Developing capacities for victim empathy, community engagement
•
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24. Thank You!
Questions, Comments, Conversation?
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